A significant percentage of people who live in Toronto rent condominium units. Many renters sign leases containing clauses that prohibit them from having a pet in their unit. Nevertheless, some renters may want to get a pet despite having agreed not to do so.
First, what should be an obvious point: if you are a tenant, and you have signed a lease in which you agree not to have a pet in your unit, bringing a pet into your unit in the face of that agreement may create some issues in your relationship with your landlord. The Residential Tenancies Act, 2006 (the RTA) governs most residential tenancies in Ontario. Section 14 of the RTA provides that a “no pet” provision in a residential lease is void. That is, any provision in a lease that prohibits the presence of animals in the unit is not enforceable against a tenant. For non-condominium rental units, this would likely be the end of the inquiry (subject to considerations like whether the pet is a nuisance or otherwise interferes with other residents of the residential complex).
But for condominium rental units, there is an added wrinkle in the form of the condominium corporation’s governing documents (known as the declaration, the by-laws and the rules). These documents often contain restrictions on the use of the units, and may include restrictions and prohibitions on the keeping of pets in the units. For example, a condominium corporation may restrict the number of pets that can be kept in a unit (e.g., one pet per unit), or the type of pet (e.g., no dogs), or the size of pet (e.g., no pets over 25 lbs.). The condominium corporation may even prohibit pets altogether. Pursuant to the Condominium Act, 1998 (the Condo Act), both owners and tenants are bound by the provisions of the condominium corporation’s governing documents, and the landlord of a rented unit is required to give the tenant copies of these governing documents and to take reasonable steps to ensure that the tenant complies with the governing documents.
Given this context, if a landlord of a condominium unit includes a no-pets clause in the lease for that unit, the landlord may be doing so because the condominium corporation’s governing documents prohibit pets. This could be seen as giving rise to a conflict between the RTA and the Condo Act.
This apparent conflict was the subject of the court’s decision in Metropolitan Toronto Condominium Corp. No. 949 (77 & 99 Harbour Sq) v. Irvine. In that case, the condominium corporation’s declaration prohibited pets from being kept in the units (subject to certain exceptions that were not applicable). The Irvines, who were tenants, also had a lease with a “no pets” clause. Despite this, the Irvines kept a dog in their unit. When the condominium corporation went to court seeking an order removing the dog from the unit, the Irvines opposed this on the basis that the equivalent section of the predecessor legislation to the RTA operated to void the “no pets” clause in the Irvines’ lease. They took the position that, as they were tenants, the residential tenancy legislation prevailed.
The court disagreed. While the predecessor legislation did not permit “no pets” clauses in lease agreements, that did not extend to affect the validity of a “no pets” clause in a condominium declaration. As such, the court ordered the dog removed from the unit. This makes sense, as the interpretation argued by the tenants would have led to an absurd result – unit owners would have not been permitted to keep pets in their units, but tenants in the same building would have been.
The takeaway for a tenant of a condominium unit who wants a pet despite a “no pets” clause in the tenant’s lease is to understand that situations like the Irvines’ are often why the “no pets” clause is there. When in doubt, double-check the governing documents of the condominium corporation. The last thing you would want would be to get a pet, get attached to the pet, and then be told that you have to choose between keeping your pet and keeping your unit.
Timothy Duggan is a condominium lawyer and civil litigator with Horlick Levitt Di Lella LLP. Reasonable Doubt appears on Mondays. You can contact him on Twitter at @timmyd_ and tell him what you would like to read about in future columns.
A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer. The views expressed in this article do not necessarily reflect those of Horlick Levitt Di Lella LLP or the lawyers of Horlick Levitt Di Lella LLP.
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